Mental health challenges continue to evolve in the COVID-19 pandemic

The COVID-19 pandemic, including its disruptions to our personal and working lives, has resulted in a number of new mental health challenges for employees. For example, remote and hybrid working has caused many employees to feel isolated, video call fatigue, and burnout. These issues can contribute to and exacerbate mental health challenges.

In light of this new working reality, what steps must employers take to identify and accommodate employee mental health challenges? Here is what employers need to know.

According to the Canadian Mental Health Association, one-in-five people in Canada will experience a mental health problem or illness in any given year.¹ Each year, the economic burden of mental illness in Canada is estimated to be approximately $51 billion, with $6.3 billion resulting from lost productivity.² Indirect costs related to poor mental health in the workplace include absenteeism, presenteeism,³ and challenges with recruitment and retention.

In accordance with applicable human rights legislation, employers have a duty to accommodate employees with a disability to the point of undue hardship. “Disability” covers a broad range and degree of conditions, including mental health challenges such as depression, anxiety disorder, stress disorder, social phobia, and addiction.

The duty to accommodate includes both a procedural and substantive duty. The procedural duty requires an investigation of accommodation measures and an assessment of the employee’s individual needs. In most cases, the procedural duty to accommodate is triggered by an employee’s express request for accommodation. To accommodate an employee’s mental health challenge, employers should do the following:

1. Consider an employee’s request for mental health accommodation
2. Explore what accommodation is needed
3. Contemplate possible accommodation options
4. Request information required to respond to the accommodation request and in some circumstances obtain an independent medical evaluation
5. Process the accommodation request in a timely manner
6. Maintain the employee’s confidentiality
   

Although it can be challenging, it is important for employers to maintain diligent records of the accommodation process. An employer’s failure to consider an accommodation request or take appropriate steps in response to a request, may be seen as a failure to satisfy the procedural duty to accommodate.

The substantive duty to accommodate concerns the reasonableness of the accommodation offered or the employer’s reasons for not providing accommodation (i.e., the accommodation would cause undue hardship) once the employer has gathered the required information. When assessing whether an accommodation would cause undue hardship, employers may only consider (i) cost, (ii) outside sources of funding, if any, and (iii) health and safety requirements, if any.

Appropriate accommodations for mental health challenges can include, but are not limited to:

• Flexible scheduling
• Medical leaves of absence
• Modifications to job duties
• Further training
• Reduction of hours and/or remote working

The duty to accommodate requires an employer to provide a reasonable accommodation that meets the employee’s needs—not the employee’s preferred accommodation. Accordingly, the accommodation decision should be based on the specific facts of the situation on a case-by-case basis.

Similarly, employees have a responsibility to participate in the accommodation process by:

1. Informing the employer of the circumstances/limitations relating to their mental health challenge
2. Engaging with the employer in the accommodation process
   
3. Providing the employer with enough information to facilitate the accommodation
   
4. Updating the employer when changes are required to the accommodation

The accommodation process is intended to be a dialogue or interactive process between the employer and the employee. An employee is not entitled to make a request for accommodation yet refuse to participate in the accommodation process or respond to reasonable requests from the employer.

Generally, the duty to accommodate a disability exists for needs that are known (i.e., an employee advises their employer of a disability and/or makes a request for accommodation). However, the nature of a psychosocial disability may leave an employee unable to identify that they have a disability or that they require accommodation. Where an employer is aware, or ought to be aware, that there may be a relationship between a disability and an employee’s job performance, the employer has a duty to inquire into that possible relationship before making a decision that could affect the employee adversely.

For example, an employer’s duty to inquire may be engaged when there is a sudden change to an employee’s behaviour, such as increased poor work performance or a rise in lateness or absenteeism.

In most cases, an employer does not have the right to know an employee’s confidential medical information, such as the cause of a disability and its diagnosis, symptoms, or treatment. However, in some circumstances, such as cases of mental illness, it may be necessary for an employer to obtain the diagnosis to accommodate the disability.

Generally, an employer is permitted to request certain information necessary for accommodation, including:

• The limitations and/or restrictions associated with the disability
• Whether the employee can perform the essential duties or requirements of their position
• The types of accommodation(s) that may be needed to allow the employee to fulfill the essential duties or requirements of their position
• The duration of the limitations and/or restrictions
  

This relevant accommodation information can often be obtained through the employee’s completion of a functional abilities form with their physician or medical practitioner. It is important that all medical information shared with the employer is kept confidential and only shared with those who need to be aware of the information, such as management or the human resources department. Moreover, an employee’s medical information should be stored in a safe and secure location, separate from the employee’s personnel file.

Managing workplace mental health—especially in the context of remote and hybrid working—is critical to a healthy and productive workplace. Whether employees are languishing⁴ or experiencing mental health challenges akin to a disability, employers can take the following proactive steps to support employee mental health:

1. Provide employees, including management, with mental health training and awareness
2. Advise employees of the available employee and family assistance programs (EFAPs)
3. Establish healthy workplace expectations and after-hours availability
4. Recognize circumstances where there may be a relationship between a disability and an employee’s job performance
5. Take a flexible approach to accommodation of an employee’s mental health challenge

Workplaces that recognize and accommodate mental health challenges benefit both employers and employees through reduced absenteeism, enhanced employee morale, and improved employee performance, among other benefits. It is for these reasons that workplace mental health should continue to be a top priority for all organizations.